Citation Nr: 1520569
Decision Date: 05/13/15 Archive Date: 05/26/15
DOCKET NO. 13-22 668 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a mental health disorder.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD).
4. Entitlement to service connection for hepatitis C.
5. Entitlement to service connection for prostate cancer.
REPRESENTATION
Appellant represented by: Harry Binder, Attorney
ATTORNEY FOR THE BOARD
David Gratz, Counsel
INTRODUCTION
The Veteran served on active duty from March 1970 to December 1972, including in the Republic of Korea.
This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The issues of 1) entitlement to service connection for a mental health disorder, 2) entitlement to service connection for hepatitis C, and 3) entitlement to service connection for prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Tinnitus had its onset in service.
2. The most probative evidence fails to link the Veteran's COPD to service.
CONCLUSIONS OF LAW
1. The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014).
2. The criteria for establishing entitlement to service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 1137, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).
The duty to notify was satisfied prior to the initial October 2012 RO decision by way of letters sent to the Veteran in September 2010 and August 2011 that informed him of his duty and the VA's duty for obtaining evidence. The RO also provided adequate notice of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service treatment and personnel records, VA treatment records, and lay evidence have been obtained.
Additionally, the medical examination of record for the Veteran's COPD is adequate. In the April 2013 medical opinion, the VA examiner used his expertise to draw conclusions from the totality of the evidence. His report discussed the medical and lay evidence of record sufficiently to render a complete opinion and rationale. See Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.
Service Connection
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).
Analysis: Service Connection for Tinnitus
The Veteran contends in his October 2010 statement that he has a constant ringing in his ears which may be attributable to working on helicopters without proper head gear. In January 2011, the Veteran wrote that he worked on the flight line on helicopters without any ear protection, and the ringing in his ears gets louder and steadier as he gets older.
The Veteran's statements associating the ringing in his ears with his work on helicopters on the flight line, and particularly his assertion that "the ringing in my ears just gets louder and more steady as I get older," constitutes an assertion that his tinnitus began in service and has continued thereafter. The Board finds that the Veteran's report is both competent based on his ability to observe the phenomenon with his own senses, and credible because it is consistent with his military occupational specialty (MOS) of Aircraft Mechanic. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a layperson is competent to observe tinnitus).
The Board acknowledges that the October 2012 examiner opined that the Veteran's tinnitus is less likely than not due to service because the Veteran stated that his tinnitus began "a few years ago." However, the Board finds that the examiner's conclusion is misplaced, as the Veteran has competently and credibly reported that his tinnitus began in service, and his DD Form 214 confirms his MOS of Aircraft Mechanic. Further, the Veteran's statement at the examination was vague in nature and thus insufficient to contradict his prior statement. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (the Board may properly consider the internal consistency of the Veteran's statements, facial plausibility, and consistency with other evidence).
Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
Analysis: Service Connection for COPD
The Veteran contends in his August 2010 claim that his COPD results from his chronic cough. In October 2010, the Veteran asserted that his work on brakes and clutches in the motor pool in service exposed him to asbestos "that might have something to do with my lung problems and COPD in my lungs."
There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000).
The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a Manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."
VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a.
The Manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f.
The Manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h.
In this case, in November 2010, the National Personnel Records Center (NPRC) responded to VA's request for any records of asbestos exposure in service. The NPRC explained that it was unable to furnish a response to this request because the record appears to be incomplete. In light of the Veteran's competent lay statements and the absence of evidence to the contrary, the Board shall assume that the Veteran was exposed to asbestos in service.
Following a thorough review of the record, the Board finds that the preponderance of the evidence shows that the Veteran's current COPD was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including asbestos exposure. Because the most probative evidence of record shows that there is no nexus between the present COPD and any claimed in-service disease or injury, service connection is denied.
The Veteran's service treatment records show no diagnosis or treatment of COPD.
In April 2013, a VA examiner diagnosed the Veteran with COPD, noted that the initial diagnosis was made in 2009, and further noted that the Veteran was a 60-pack-per-year smoker and had quit five years ago. The examiner opined that the Veteran's current COPD is less likely than not to be secondary to his complaints of a cough in service, and most likely due to his long-term cigarette smoking. In support of his conclusion, the examiner cited the absence of COPD until 35 years after separation from service.
The Board finds that the April 2013 VA examiner's opinion is the most probative of record. The VA examiner's opinion constitutes competent medical evidence because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the Board finds that the VA examiner's etiological opinion is credible based on its internal consistency and his duty to provide truthful opinions. The Board further finds that the VA examiner's opinion is most probative because he considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's diagnostic results show that his COPD is unrelated to service. 38 C.F.R. § 3.303.
Similarly, the Board finds that the VA examiner's April 2013 opinion warrants greater probative value than the Veteran's lay statements. Indeed, the Veteran's lay statements linking his COPD to his service, including to in-service asbestos exposure, are less probative because under the circumstances of this particular case he is not competent to opine on the relationship between asbestos exposure and COPD, as it involves complex medical questions and the interpretation of objective medical tests. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). No competent evidence linking the Veteran's COPD to service is of record.
In sum, the Board finds that the most probative evidence fails to link the Veteran's COPD to service, including to asbestos exposure. Accordingly, the benefit of the doubt doctrine does not apply, and service connection for that disorder is not warranted. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for tinnitus is granted.
Service connection for COPD is denied.
REMAND
Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
A medical examination or medical opinion is necessary in a claim for service connection if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, or 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. Id.
With respect to the mental health disorder, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).
The Veteran has provided competent lay evidence of recurrent symptoms of a mental health disability, including reports to VA clinicians of depression (January 2011 and September 2011) and anxiety (October 2011). The evidence also establishes that he suffered an event in service, and indicates that his claimed symptoms may be associated with that event. Specifically, the Veteran explained in a January 2011 letter that he had experienced a "mental breakdown" in service "when I found out my wife was pregnant by another man." He reported that he was given 30 days of emergency leave to return from Korea to the United States to attend to this matter. In October 2010, he wrote that "when I came back to Korea I started doing drugs," and that "my drug addiction was caused by peer pressure and mental health problems." As the Veteran is experiencing recurrent depression, and as he suffered an event during service to which his depression and anxiety may be linked, a VA examination is warranted. See 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. 79 (2006).
With respect to the prostate cancer, the Veteran asserted in October 2010 that his prostate cancer is due to either herbicide exposure in Korea or to venereal diseases. The Board observes that the Veteran has a current diagnosis of prostate cancer from VA clinicians. The Board also observes that prostate cancer will be presumed to have been incurred as a result of herbicide exposure if a Veteran is found to have been exposed to certain herbicides in service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
In August 2012, the RO determined that the information required to verify exposure to the herbicide Agent Orange during military service is insufficient to send to the Joint Services Records Research Center (JSRRC) or the National Archives and Records Administration (NARA). However, the Board observes that pursuant to M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.p., a request must be sent to the JSRRC for verification of exposure to herbicides when a Veteran claims exposure in Korea, and his service is not among the units or entities listed in the associated table. Here, the Veteran notified VA in April 2012 that he served at Camp Casey in Korea in 1970 and 1971 with E. Company, 702nd Maintenance Battalion, 2nd Infantry Division-which is not among the units or entities listed in the table.
The Veteran stated in his October 2010 letter that "handling spray rigs and manaver [sic] on the DMZ may have resulted in herbicide exposure." He also stated in his April 2012 letter that "Korean personnel would spray herbicides along the fence and buildings around the airfield and on our compound. They sprayed with hand-held sprayers." An April 2012 letter from a fellow veteran stating that he also witnessed the spraying of herbicides in Korea is also of record.
Consequently, the RO should either contact JSRRC and/or other appropriate sources for a determination as to whether the Veteran was exposed to qualifying herbicides in service, or explain why the identifying information provided by the Veteran is insufficient to conduct that development.
With respect to hepatitis C, the Veteran wrote in October 2010 that "when I came back to Korea [from a 30-day leave following his wife's pregnancy by another man,] I started doing drugs." The Veteran further stated that "my drug addiction was caused by peer pressure and mental health problems." VA clinicians initially diagnosed the Veteran with hepatitis C in March 2010. Because the Veteran asserts that his drug addiction was self-medication for a mental health disorder acquired in or as a result of an event during service, and because drug use is a possible etiology for hepatitis C, the Board finds that the issue of entitlement to service connection for hepatitis C is inextricably intertwined with his remanded claim of entitlement to service connection for a mental health disorder. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue).
As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received for his mental health disorder, hepatitis C, and prostate cancer, and take appropriate measures to obtain those records, including the service-era Red Cross mental health records which the Veteran requested in his January 2011 letter. Any additional, pertinent VA treatment records should either be made accessible electronically or be printed and added to the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his mental health disorder, hepatitis C, and prostate cancer that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file.
2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge of the nature and onset of his mental health disorder, hepatitis C, and prostate cancer. He should be provided an appropriate amount of time to submit this lay evidence.
3. After physically or electronically associating any pertinent, outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the nature, extent, onset and etiology of any mental health disorder found to be present. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail.
If the examiner diagnoses the Veteran as having a mental health disorder, the examiner must opine as to whether it is at least as likely as not that the disorder is related to or had its onset during service.
If the examiner diagnoses the Veteran as having a mental health disorder, the examiner must opine as to whether the Veteran's drug use was secondary to his mental health disorder.
The examiner should consider the Veteran's reports to VA clinicians of depression (January 2011 and September 2011) and anxiety (October 2011), as well as his October 2010 and January 2011 statements that his wife became pregnant by another man while he was serving in Korea, and that he had a mental breakdown and became addicted to drugs as a result.
The rationale for all opinions expressed should be set forth in a legible report.
4. If the VA mental health examiner diagnoses the Veteran with a mental health disorder and finds that his drug use was secondary to a mental health disorder, then the RO should obtain a VA medical opinion as to the Veteran's hepatitis C.
The claims folder should be made available and reviewed by the VA clinician.
In the report, the VA clinician should state whether it is at least as likely as not that the Veteran's hepatitis C was caused by his drug use.
The VA clinician should also state whether it is at least as likely as not that the Veteran's hepatitis C was aggravated beyond the natural progress of the disease by his drug use.
Finally, the VA clinician should state whether at least as likely as not that the hepatitis C is related to or had its onset during service.
The rationale for all opinions expressed should be set forth in a legible report.
5. Contact JSRRC and/or other appropriate sources for a determination as to whether the Veteran was exposed to qualifying herbicides in service in Korea, or explain why the identifying information provided by the Veteran is insufficient to conduct that development. See M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.p.
The Veteran notified VA in April 2012 that he served at Camp Casey in Korea in 1970 and 1971 with E. Company, 702nd Maintenance Battalion, 2nd Infantry Division.
6. Then readjudicate the appeal. If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs